Law School Case Brief
Reicherter v. McCauley - 47 Kan. App. 2d 968, 283 P.3d 219 (2012)
No Kansas court has ruled on the issue of whether one joint tenant can unilaterally sever a joint tenancy by executing a quitclaim deed conveying his or her interest in the real estate to himself or herself as a tenant in common. For three reasons, the Court of Appeals of Kansas holds that a joint tenant can self-convey and thus destroy a joint tenancy in the case where there are just two joint tenants. First, under Kansas law, it is clear that any joint tenant may unilaterally sever his or her joint tenancy interest in real property and create a tenancy in common by conveying his or her interest to a third person. Whatever interest a joint owner has in real estate it is freely transferable, that is, it can be sold or given to someone else. There is no need for the party seeking transfer of ownership to first give notice to, or obtain the consent of, the remaining tenant to effectuate the conveyance.
Richard F. Reicherter and his cousin, plaintiff Douglas M. Reicherter, acquired an 80-acre farm in Marshall County in 1990, as joint tenants with rights of survivorship. Years later, when Richard was residing in a care facility, he signed a quitclaim deed on Dec. 18, 2009, that conveyed his interest in the 80 acres to himself in an apparent attempt to sever the joint tenancy and create a tenancy in common. After signing, Richard gave the deed to his attorney for recording and registered the quitclaim. Richard died on Dec. 28, 2009, an the county register of deeds recorded Richard's quitclaim deed one day after his death. Douglas was unaware that Richard had executed and filed a quitclaim deed until after Richard's death. There was no express agreement between Richard and Douglas preventing Richard from severing the joint tenancy. Douglas and his wife filed a quiet title action in Kansas state court against defendant Barbara J. McCauley, the executrix of Richard's estate, seeking title to the entire 80-acre tract. McCauley counterclaimed claiming a half ownership interest and sought partition of the farm. Douglas opposed this action. Both sides sought summary judgment. Ruling that Richard clearly intended to sever the joint tenancy and that he could convey his interest to himself unimpeded and could thus create a tenancy in common, the district court granted McCauley's motion and denied Douglas' motion for summary judgment. The district court also held that the joint tenancy was severed when Richard, prior to his death, delivered the quitclaim deed to his attorney for filing.
Can a joint tenant, 10 days before his death, effectively destroy a joint tenancy interest in a tract of real estate and replace it with a tenancy in common tenant by signing a quitclaim deed to himself and giving it to his lawyer for recording?
The appellate court affirmed the district court's ruling. The court held that for purposes of Kan. Stat. Ann. § 58-501, upon effective delivery during the grantor's life, a quitclaim deed by a joint tenant to himself as tenant in common severed the joint tenancy and created a tenancy in common. The court clarified that its ruling was limited to cases in which there were just two joint tenants. Thus, as Richard effectively delivered his quitclaim deed prior to his death, the joint tenancy with Douglas was severed.
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